4/16/2008

DRJ is on the case in timely fashion, but do yourself a favor – don’t just read the news accounts of the Baze opinion. Read the entire concurrence by Antonin Scalia [starting on page 57 of this PDF document]. Scalia unloads on Justice Stevens and gives him the biggest ass-ripping since the one he gave to Sandra Day O’Connor in Planned Parenthood v. Casey.

It is decisions like this that make it quite obvious that Scalia’s critics will never get the better of him. His reasoning is just too solid – forcing his detractors to embrace positions that contradict fundamental tenants tenets of both democracy and the English language.

Here is but a small taste –

As JUSTICE STEVENS explains, “ ‘objective evidence, though of great importance, [does] not wholly determine the controversy, for the Constitution contemplates that in the end our own judgment will be brought to bear on the question of the acceptability of the death penalty under the Eighth Amendment.’ ” Ante, at 14 (quoting Atkins v. Virginia, 536 U. S. 304, 312 (2002); emphasis added; some internal quotation marks omitted). “I have relied on my own experience in reaching the conclusion that the imposition of he death penalty” is unconstitutional. Ante, at 17 (emphasis added).

Purer expression cannot be found of the principle of rule by judicial fiat. In the face of JUSTICE STEVENS’ experience, the experience of all others is, it appears, of little consequence. The experience of the state legislatures and he Congress—who retain the death penalty as a form of punishment—is dismissed as “the product of habit and inattention rather than an acceptable deliberative process.” Ante, at 8. The experience of social scientists whose studies indicate that the death penalty deters crime is delegated to a footnote. Ante, at 10, n. 13. The experience fellow citizens who support the death penalty is described, with only the most thinly veiled condemnation, as stemming from a “thirst for vengeance.” Ante, at 11. It is JUSTICE STEVENS’ experience that reigns over all.
* * *

Well done Nino!

Kudos to Justice Thomas as well, whose concurrence I find much more persuasive than Chief Justice Robert’s plurality opinion. It starts of page 65 of the PDF document.

J. Scalia certainly knows how to fisk J. Stevens but J. Thomas is the clear thinker when it comes to this issue. Sadly, C.J. Roberts’ formulation is positively O’Connoresque and doesn’t compare to J. Thomas’ clear statement of the Constitutional standard (at p. 65 of your link):

“This standard — along with petitioners’ proposed “unnecessary risk” standard and the dissent’s “untoward risk” standard, post, at 2—finds no support in the original understanding of the Cruel and Unusual Punishments Clause or in our previous method-of-execution cases; casts constitutional doubt on long-accepted methods of execution; and injects the Court into matters it has no institutional capacity to resolve. Because, in my view, a method of execution violates the Eighth Amendment only if it is deliberately designed to inflict pain, I concur only in the judgment.”

nk – If you think that Scalia said “nothing of substance” here, I simply don’t know how to respond to that. I’m content just to let others read it for themselves and draw their own conclusions as to its substance, as well as your continued role as a naysayer on this blog who always needs to get in the last word apparently just to see himself type.

“But of all JUSTICE STEVENS’ criticisms of the death penalty, the hardest to take is his bemoaning of “the enormous costs that death penalty litigation imposes on society,” including the “burden on the courts and the lack of finality for victim’s families.”
Those costs, those burdens, and that lack of finality are in large measure the creation of JUSTICE STEVENS and other Justices opposed to the death penalty, who have “encumber[ed] [it] . . . with unwarranted restrictions neither contained in the text of the Constitution nor reflected in two centuries of practice under it”—the product of their policy views “not shared by the vast majority of the American people.'”

Justice Scalia smacking J. Stevens upside the head with a copy of the Constitution. If Stevens wants to ignore the clear text of the Constitution, then he should retire from the high court and become a law school professor.

NK–Scalia’s opinion is essentialy an op-ed. But Stevens needed to be called out for what he said, so I don’t think it’s a waste of paper.

And there’s certainly worse wastes of paper in the court reports. Did any of your law school professors ever inflict on you the judge who wrote an opinion in rhyming couplets? He was, as I recall, inspired by the fact that the case involved, somehow, a Shakespearean play. Fortunately, I don’t recall anything else about it.

Gad, NK, it figures you would find one that quick. But that’s not it. I too did go to law school before that. (Make you feel better, DRJ?) Just barely, though. I was enmeshed in the toils of BARBRI when that was published. For me to hear it in law school means it would have had to be published no later than 1982.

nk – Since I have always felt that there is more wisdom to be found in local bars than in the Harvard Law Review, I take that to be a high compliment indeed. But with that said, feel free to refrain from commenting on my posts if you personally feel that my analysis is lacking. I recall that you once posted an entry to your own blog calling me several four-letter names, only to take it down in cowardly fashion after you realized that people reading it would recognize you for the egotistical ass that you are. I would hope that you both put that original post back up and link to this one as well so that even more readers will look at our exchange and make their own judgments. I am certainly not afraid of what they might conclude…

Seriously, however admirable Scalia’s rhetoric is, it remains just rhetoric. The thing that should be remarked on is that one Supreme Court Justice feels compelled to explain to another Supreme Court Justice, in very public fashion, what OUGHT to be a basic point of constitutional law.

I’ll try and make this as simple as I can. The controversy started when nk made the ridiculous claim in comment # 6 that Scalia said “nothing of substance” in his opinion. I disagreed. In your comment # 32, even YOU now admit that Scalia said something of substance. Therefore, you agree with the fact that I am right. Sorry if that upsets you.

Justine: RE The effect on CA courts…
Will you be filing an Amicus in the Appeals Court bringing J.Alito’s position to the atention of the court on the needless redrawing of the proceedures for execution?

“It is decisions like this that make it quite obvious that Scalia’s critics will never get the better of him.”

– Justin Levine

“Never”? As in, “never-ever“? How the hell do you figure that? Scalia expressed an opinion in much the same way as Stevens did, and you fall all over yourself trying to make it sound like he made some irrefutable, groundbreaking point.

Besides, Stevens is right when he says that “our own judgement will be brought to bear on the acceptability of the death penalty under the Eighth Amendment”. Whether or not the death penalty “works” (and I’m not entirely opposed to it, in certain cases), and regardless of all the pretty graphs and charts that Scalia apparently thinks should be the sole object of judicial consideration, it’s a judge’s job to decide whether or not the death penalty is constitutional; I think that’s exactly what Stevens is saying.

“I recall that you [nk] once posted an entry to your own blog calling me several four-letter names, only to take it down in cowardly fashion after you realized that people reading it would recognize you for the egotistical ass that you are. I would hope that you both put that original post back up and link to this one as well so that even more readers will look at our exchange and make their own judgments. I am certainly not afraid of what they might conclude…”

– Justin Levine

Aack. There are few (if any) individuals on this site with whom I’d rather have a polite discussion of political issues than nk. Give credit where credit is due; even if the two of you had a snit, you’d do well to admit that nk is an exemplary regular.

Since you’ve disabled comments on your 4/16/2008 thread on this topic, I’m leaving my comment here. I spent an hour or more looking over the California issues yesterday to try to respond to comments on my thread but I didn’t have a good enough handle on it to respond. Based on what I knew and learned, I think your analysis of the status of the California death penalty is spot on.

Alito’s concurrence probably won’t stop future legal proceedings in California, but I don’t see how future appeals will succeed if they are based on objections to the 3-drug protocol or the absence of anesthesiologists.

SEARCH AMAZON USING THIS SEARCH BOX:
Purchases made through this search function benefit this site, at no extra cost to you.
We are a participant in the Amazon Services LLC Associates Program, an affiliate advertising program designed to provide a means for us to earn fees by linking to Amazon.com and affiliated sites.